New South Wales Consolidated Acts

LONG SERVICE LEAVE ACT 1955 - SECT 4

4 Long service leave

(1) Except as otherwise provided in this Act, every worker shall be entitled to long service leave on ordinary pay in respect of the service of the worker with an employer. Service with the employer before the commencement of this Act as well as service with the employer after such commencement shall be taken into account for the purposes of this section.

(2)

(a) Subject to paragraph (a2) and subsection (13) the amount of long service leave to which a worker shall be so entitled shall-

(i) in the case of a worker who has completed at least 10 years service with an employer be-

(A) in respect of 10 years service so completed, 2 months, and

(B) in respect of each 5 years service with the employer completed since the worker last became entitled to long service leave, 1 month, and

(C) on the termination of the worker’s services after the completion of 15 years service, in respect of the number of years service with the employer completed since the worker last became entitled to an amount of long service leave, a proportionate amount on the basis of 2 months for 10 years service, and

(ii) in the case of a worker who has completed at least 10 years service but less than 15 years with an employer and whose services with the employer are terminated or cease for any reason, be a proportionate amount on the basis of 3 months for 15 years service, and

(iii) in the case of a worker who has completed with an employer at least five years service, and whose services are terminated by the employer for any reason other than the worker’s serious and wilful misconduct, or by the worker on account of illness, incapacity or domestic or other pressing necessity, or by reason of the death of the worker, be a proportionate amount on the basis of 2 months for 10 years service.

(a2) In the case of a worker, whose service with an employer began before the commencement of the Long Service Leave (Amendment) Act 1963 and whose service would entitle the worker to long service leave under this section, the amount of long service leave to which such worker shall be entitled shall be the sum of the following amounts-

(i) an amount calculated on the basis of three months for twenty years service in respect of the period of service of the worker before such commencement, and

(ii) an amount calculated on the basis of 2 months for 10 years service in respect of the period of service of the worker as from such commencement.

(a3) For the purposes of subsections (2), (3) and (3A),
"month" means 4 and one-third weeks.

(b)

(i) A worker entitled under this section to long service leave in respect of a period of service with an employer shall not, except in pursuance of an agreement between the worker and the employer entitling the worker to leave in the nature of long service leave in addition to long service leave under this Act, be entitled otherwise than under the provisions of this Act to leave in the nature of long service leave in respect of that period of service with that employer.

(ii) Where before or after the commencement of this Act-

(A) a worker has otherwise than in pursuance of this section been granted by an employer and taken any leave in the nature of long service leave in respect of a period of service with the employer, or

(B) payment of the monetary value of leave in the nature of long service leave has been made to the worker or other person entitled thereto,

the leave so granted and taken or the leave in respect of which such payment has been made shall, except where such leave has been taken or payment therefor has been made pursuant to an agreement referred to in subparagraph (i), be deducted from any amount of long service leave to which such worker is entitled pursuant to this section in respect of that period of service with that employer.

(3) Subject to subsection (5), where a worker has become entitled to long service leave in respect of the service of the worker with an employer, the employer shall give to the worker and the worker shall take the leave-

(a) as soon as is practicable having regard to the needs of the employer’s establishment, or, where the employer and the worker agree that the taking of the leave be postponed until an agreed date, as from that date,

(b) in one continuous period or, if the worker and the employer so agree, in the following separate periods and not otherwise-

(i) where the amount of the leave is 2 months, in two separate periods,

(ii) where the amount of the leave exceeds 2 months and does not exceed nineteen and one-half weeks, in two or three separate periods,

(iii) where the amount of the leave exceeds nineteen and one-half weeks, in two, three or four separate periods-

Provided that where any leave has been given to and taken by the worker pursuant to subsection (3A), this subsection shall apply to and in respect of so much only of the leave to which the worker has become entitled as has not been so given and taken.

(3AA) Despite subsection (3)(b), an employer and worker may agree to the worker taking long service leave in 2 or more separate periods of not less than 1 day.

(3A) If the employer and the worker so agree, a period of long service leave of not less than 1 day may be given by the employer, and taken by the worker, wholly or partly in advance before the worker has become entitled to any long service leave or to the amount so agreed to be given and taken. No such agreement shall, for the purposes of subsection (2) (A) (i) (B) or (C), be deemed to confer on the worker an entitlement to long service leave.

(3B) For the purposes of subsections (3AA) and (3A), in relation to a worker for whom no normal weekly number of hours is fixed under the terms of the worker’s employment, the reference to 1 day is taken to be a reference to the number of hours calculated as follows-

"A" is the higher of-

(a) the average weekly number of hours worked by the worker during the period of 12 months ending on the date immediately preceding the date on which the worker enters long service leave, or

(b) the average weekly number of hours worked by the worker during the period of 5 years ending on the date immediately preceding the date on which the worker enters long service leave, and

"B" is the average number of days worked weekly by the worker during the period used for calculating
"A" .

(4) The long service leave provided by this section is exclusive of annual holidays occurring during the taking of any period of long service leave.

(4A) Where-

(a) any day appointed by the Governor as a public holiday to be observed generally throughout New South Wales occurs during any period of long service leave taken by a worker under this section, and

(b) the worker is entitled to payment in respect of that day under any Act, award or industrial agreement or under the contract of employment of the worker,

the period of the long service leave shall be increased by one day in respect of that public holiday.

(5)

(a) Where the services of a worker are terminated otherwise than by the worker’s death and any long service leave-

(i) to which the worker was entitled has not been taken, or

(ii) accrues to the worker upon such termination and has not been taken,

the worker shall, subject to subsection (13), be deemed to have entered upon the leave from the date of such termination and the employer shall forthwith pay to the worker in full the worker’s ordinary pay for the leave less any amount already paid to the worker in respect of that leave.

(b) Where a worker dies and any long service leave-

(i) to which the worker was entitled has not been taken, or

(ii) accrued upon termination of the services of the worker by reason of the worker’s death and has not been taken,

the employer shall upon request by the worker’s personal representative pay to the worker’s personal representative in full the ordinary pay that would have been payable to the worker in respect of long service leave less any amount already paid to the worker in respect of that leave.

(c) On the termination of the services of a worker who had taken any leave pursuant to subsection (3A) the worker’s employer may, subject to this paragraph and subsection (13), deduct from any remuneration payable on such termination in respect of the worker’s services-

(i) if the worker had not become entitled to any long service leave in the course of or upon the termination of the worker’s services-the amount paid to the worker as ordinary pay for the leave so taken, or

(ii) if the worker had become so entitled-the amount paid to the worker as ordinary pay for the excess, if any, over the worker’s total entitlement of the period or total of the periods of long service leave on ordinary pay given pursuant to this Act by that employer to and taken by the worker.

(5AA) Notwithstanding subsection (5) (c), the deduction to be made pursuant to subsection (5) (c) shall not exceed the amount of ordinary pay that would have been payable for the period of leave or excess leave, as the case may be, had it been taken on the termination of the services of the worker.

(5A) An employer shall not give to a person who is a registered worker under the Building and Construction Industry Long Service Payments Act 1986 any long service leave or pay to any such person any payment in respect of long service leave unless that person applies to the employer for the leave or payment.

(5B) An employer must not give to a person who is a registered worker under the Contract Cleaning Industry (Portable Long Service Leave Scheme) Act 2010 any long service leave or pay to any such person any payment in respect of long service leave unless that person applies to the employer for the leave or payment.

(7) Subject to subsection (5), where a worker enters upon a period of long service leave, the employer of the worker shall pay to the worker the ordinary pay to be paid to the worker in respect of the period of leave in one of the following ways-

(a) in full when the worker commences the period of leave, or

(b) at the same time as the worker’s ordinary pay would have been paid if the worker had remained on duty, in which case payment shall, if the worker in writing so requires, be made by cheque posted to an address specified by the worker, or

(c) in any other way agreed between the employer and the worker,

and the ordinary pay shall become due to the worker accordingly.

(8) Except as provided in subsection (5), payment shall not be made by an employer to a worker in lieu of any long service leave or part thereof to which the worker is entitled under this Act nor shall any such payment be accepted by the worker.

(9) Any amount payable under this section-

(a) to the personal representative of a worker, shall be recoverable by the personal representative of the worker, or

(b) to a worker who dies before being paid such amount, shall be recoverable by the personal representative of the worker as payment due to the worker,

in like manner as a worker may recover any amount under section 12.

(10) The employer shall give to each worker at least one month’s notice of the date from which it is proposed that the worker’s long service leave shall be given and taken.

(10A) However, an employer may, under subsection (10), give a worker less than 1 month’s notice if the worker agrees to the lesser period of notice.

(11) For the purposes of this section-

(a) service of a worker with an employer means continuous service, whether on a permanent, casual, part-time or any other basis, under one or more contracts of employment,

(a1) the service of a worker with an employer shall be deemed to be continuous notwithstanding that the service has been broken by reason only of an interruption or determination thereof-

(i) caused by the absence of the worker under the terms of the worker’s employment,

(ii) caused by the absence of the worker on account of illness or injury,

(iii) made by the employer with the intention of avoiding any obligation imposed on the employer by this Act or by any obligation in relation to sick leave imposed on the employer by a State industrial instrument,

(iv) arising directly or indirectly from an industrial dispute,

(v) made by the employer by reason of slackness of trade,

(vi) arising from the absence of the worker for any cause by leave of the employer, or

(vii) caused by the employer for any reason other than those referred to in subparagraphs (iii)-(v) where the worker returns to the service of, or is re-employed by, the employer within 2 months of the date on which the service was interrupted or determined,

but the period during which the service is so interrupted or determined shall not in the circumstances referred to in subparagraphs (iii)-(vii), by reason only of this paragraph, be taken into account in calculating the period of service,

(b) where a worker has entered into a contract of employment with an employer within a period of twelve months after the completion of an apprenticeship with the employer the period of the worker’s apprenticeship shall be taken into account for the purpose of ascertaining the period of service of the worker with that employer under that contract of employment,

(c) where a business, undertaking or establishment or any part thereof has, whether before or after the commencement of this Act, been transmitted from an employer (in this paragraph called the transmittor) to another employer (in this paragraph called the transmittee) and a person who at the time of the transmission was a worker in the employ of the transmittor in that business, undertaking, establishment or part thereof becomes a worker in the employ of the transmittee-

(i) the continuity of the period of service of the worker shall be deemed not to have been broken by reason of the transmission, and

(ii) the period of service which the worker has had with the transmittor or any prior transmittor shall be deemed to be service of the worker with the transmittee.

In this paragraph
"transmission" , without limiting its ordinary meaning, includes transfer, conveyance, assignment or succession, whether by agreement or operation of law, and
"transmitted" has a corresponding meaning,

(d) any period during which a person served as a member of the naval, military or air forces of the Commonwealth or of the Civil Construction Corps established under the National Security Act 1939 , as amended by subsequent Acts, of the Parliament of the Commonwealth, shall, subject to subsection (12), be deemed to be service of that person as a worker in the employ of the employer by whom that person was last employed before that person commenced to serve as such member.

(12)

(a) Subsection (11) (d) shall not, where the period during which a person served as a member of the naval, military or air forces of the Commonwealth commenced by enlistment or appointment in any such force after the second day of September one thousand nine hundred and forty-five apply to and in respect of that period unless, pursuant to an Act of the Parliament of the Commonwealth of Australia enacted before or after the commencement of the Long Service Leave (Amendment) Act 1967 , that person was entitled to apply to be reinstated in that person’s former civil employment on the termination of that person’s period of service as such a member and that person did not, at the expiration of the period during which that right subsisted, continue as a member of such a force.

(b) For the purposes of this subsection, the former employer to whom application for reinstatement is required to be made pursuant to an Act of the Parliament of the Commonwealth of Australia referred to in paragraph (a) shall, notwithstanding anything contained in any such Act, be deemed to be and always to have been the employer by whom the member of the naval, military or air forces of the Commonwealth was last employed before the commencement of the service, as such a member, entitling the person to apply to be reinstated in civil employment.

(13)

(a) In this subsection-

"Award" includes-

(a) an agreement, and

(b) a modern award in force under the Fair Work Act 2009 of the Commonwealth, and

(c) a Division 2B State award under Schedule 3A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth.

"Corporation" means any body corporate formed or incorporated in or outside New South Wales.

"Holding company" and
"subsidiary" have the same meanings as they have in the Corporations Act 2001 of the Commonwealth.

"Termination" means termination by any person or by any cause.

(b) For the purposes of this subsection-

(i) where a corporation is-

(A) the holding company, or

(B) a subsidiary, or

(C) a subsidiary of the holding company,

of another corporation, the first mentioned corporation and that other corporation shall, and no two corporations shall in any other case, be deemed to be related to each other,

(ii) a worker shall be deemed to have transferred from the service of an employer to the service of another employer, only if before, concurrently with or within a period of two months after the termination of the worker’s services with the first mentioned employer the worker entered into a contract of employment with that other employer, and the transfer shall be deemed to have occurred at the time of that termination.

(c) Where before or after the commencement of the Long Service Leave (Amendment) Act 1967 a worker has transferred from the service of an employer (in this paragraph called the first employer) being a corporation to the service of another employer being a corporation related to the first employer at the time of that transfer, then for the purposes of this section-

(i) the continuity of the period of service of the worker shall be deemed not to have been broken by reason of the transfer, and

(ii) the period of service which the worker has had with the first employer before the commencement of the service of the worker with that other employer (including any service which by reason of a prior transfer or prior transfers or for any other reason the worker is deemed by this section or, for the purposes of long service leave for such service, the worker is deemed by any Act or award to have had with the first employer) shall be deemed to be service of the worker with that other employer.

(d) Where before or after the commencement of the Long Service Leave (Amendment) Act 1967 a worker has entered into a contract of employment with an employer, being a corporation, within a period of twelve months after the completion of an apprenticeship with another employer, being a corporation which at the time of such entry into employment was related to the first mentioned employer, the period of the worker’s apprenticeship shall be taken into account for the purpose of ascertaining the period of service of the worker with the first mentioned employer under that contract of employment.

(e) Where the services of a worker with an employer are terminated and that employer is a corporation to which any other corporation is related at the time of that termination, the services of the worker shall not, for the purposes of subsections (2) and (5), be deemed to have been so terminated if the worker transfers to the employment of any such related corporation.

(f) A worker or the worker’s personal representative shall not be entitled by virtue of this subsection to long service leave or payment therefor in respect of any period of service if in respect of that period of service an employer was required by any other provisions of this Act, or by any other Act or any award, to give to the worker any long service leave and to pay wages or other remuneration therefor, or to pay wages or other remuneration for long service leave deemed to have been given to the worker, and if the obligations of that employer in that behalf have been fully satisfied and discharged.

Note-: An offence against this Act arising under this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation-see section 10A.